National Law Journal


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NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jun 13, 2018
The justices, still lagging behind in issuing opinions, have finally added an extra decision day: tomorrow! We don’t know what they’ll hand down, but we do know they will also convene later in the day to discuss which pending petitions, if any, they will decide to grant review for next term. We’re highlighting one of those cases: Dassey v. Dittmann, which has gotten a lot of attention because of its connection to the Netflix series “Making a Murderer.” We’re also looking at the ACLU’s plans to celebrate its 100th birthday that include an anthology of Supreme Court cases that involved the organization. Thanks for reading, and we welcome feedback at tmauro@alm.com and mcoyle@alm.com.
Watching ‘Making a Murderer’ at SCOTUSIt is rare for a cert petition to include discs that will allow the justices to watch the video of a controversial criminal confession to police that is at the crux of the case before them.

Rarer still is the fact that the confession has also been watched by millions of Netflix viewers in the 2015 “Making a Murderer” series. Thousands of viewers who found the confession to be coerced signed petitions to have the juvenile defendant set free.

The high-profile case is Dassey v. Dittmann, and the justices will be reviewing the petition on Thursday. Brendan Dassey was convicted in 2005 in Wisconsin on rape and murder and sentenced to life, based on the taped confession and little or nothing else. He was 16 at the time, and borderline intellectually disabled. His lawyers sought to suppress the confession. (His better-known uncle Steven Avery was also convicted on murder and other charges.)

Wisconsin courts ruled that Dassey’s confession was voluntary, but on habeas review, a federal district court judge found the confession was “clearly involuntary.” An en banc panel of the U.S. Court of Appeals for the Seventh Circuit disagreed, ruling that state courts deserved “leeway” to declare the confession voluntary.

We reached out to former U.S. solicitor general Seth Waxman, now partner at Wilmer Cutler Pickering Hale and Dorr, who wrote the petition on Dassey’s behalf, seeking review of the Seventh Circuit ruling.
Waxman (left) declined to talk about the substance of the case, but he did describe how his representation came about. “I received a call out of the blue” from Dassey’s lawyers, he said, adding that he was unfamiliar with the case and with the Netflix series at the time. But he said he would look at the state court decisions. “I read them and realized this is an unbelievably important case,” Waxman said.

The petition has extra heft because of an array of cert-stage amicus briefs filed in its wake. The brief in opposition by Wisconsin solicitor general Misha Tseytlin calls the case “a splitless request for error correction.” But here are some of the data points from the briefs that could compel the court to grant cert before the current term is over:

➤➤ A brief on behalf of law enforcement instructors may have said it all: interrogation specialists are using the Dassey confession tapes “to highlight unreliable practices to be avoided and to show ‘what not to do’ in interrogations involving juveniles and individuals with intellectual impairments.”

➤➤ A series of Supreme Court precedents established that the “greatest care must be taken” to ensure juvenile confessions are voluntary. But the court has not dealt with the issue in nearly 40 years, standards have slipped, and Waxman said in his petition that reaffirmance is “urgently needed.”

➤➤ Meantime, new social science research undercuts the notion that “innocent people do not confess.” The Innocence Project brief asserts that one in four of the 354 inmates who have been exonerated because of DNA evidence had confessed to the crimes they did not commit.

➤➤ For decades, the American Psychological Association had a policy against filing briefs at the cert stage. But it decided to so in Dassey because, in the words of counsel of record Beth Brinkmann of Covington & Burling, of “the great need for Supreme Court review of the issues arising from the unique convergence of psychological research involving false confessions, juveniles, and those with intellectual disabilities."

➤➤ Waxman’s petition makes no mention of the Netflix series, but an amicus briefon behalf of former and current prosecutors who side with Dassey cites the outrage viewers showed after seeing “Making a Murderer.”

The case “stands on the record and warrants review even without the documentary,” said Arnold & Porter’s Anthony Franze, counsel of record on the prosecutors' brief. But in light of the widespread attention to the Dassey confession, Franze wrote in the brief, reviewing the case “will also help restore the public’s faith in our justice system.”
Prominent Authors, Reflecting on SCOTUSPut aside for the moment the usual celebratory dinner and the speeches by legal luminaries. When the American Civil Liberties Union marks its 100th birthday in 2020, some of the country's most respected fiction and nonfiction authors will offer in a published anthology their takes on U.S. Supreme Court decisions and other court cases with which the organization has been involved during the last century.

The project began shortly after the election of President Donald Trump when authors Michael Chabon and his wife Ayelet Waldman, a lawyer, contacted the ACLU asking how they might volunteer, according to the ACLU's Stacy Sullivan.

Waldman had gone to law school with former President Barack Obama and the ACLU's James Esseks. "At that time, we were getting tons of people offering to volunteer," Sullivan said. "But you don't often get the likes of Michael Chabon and Ayelet Waldman."

The two authors had recently done an anthology with their writer friends about the occupation of West Gaza for the benefit of a group in Israel called Breaking the Silence. Sullivan suggested something similar on the ACLU's cases to mark the centennial.

Within two weeks, Sullivan said, she and others had put together a spreadsheet of about 100 cases from which the writers could pick. "I think we had 98 before the Supreme Court and we put in a couple of important state and local cases," she said.

There is no oversight by the ACLU of what the writers decide to write, according to Sullivan. "I really wanted these authors to look at the cases and write what they wanted to write," she said. "I don’t care if its poetry. They can look at it from a cultural perspective rather than a legal perspective and that’s great. How it affects people is what really matters."

➤➤ Among the volunteer writers, Salman Rushdie has chosen United States v. New York Times, the Pentagon Papers challenge. Lauren Groff will write about the landmark abortion ruling, Roe v. Wade. Meg Wolitzer has taken Griswold v. Connecticut and Jesmyn Ward will write on Chicago v. Morales. Other writers include Jennifer EganColson WhiteheadHanya YanagiharaAnn PatchettMarlon James and Louise Erdrich.

➤➤ Waldman, with Chabon, will edit the stories and essays. The concept, she said, "moves beyond the whole idea of the Supreme Court and becomes a way to understand the history of the civil rights movement and the conception of what it means to be a citizen. I think this could be a phenomenal teaching tool for high schools and colleges."

Waldman said she and Chabon had no difficulty finding a publisher for the anthology. "Our agent took it out and Simon & Schuster stepped forward right away," she said. The editors and literary agency are donating their advance and any proceeds connected to the book to the ACLU. The contributing writers are forgoing payment.

The anthology is expected to be published in early January 2020.
'Beware the Robots,' John Roberts WarnsChief Justice John Roberts Jr. was the commencement speaker for the Stone Ridge School of the Sacred Heart class of 2018 this month. His daughter was among the graduates at the Bethesda, Maryland, girls school. Roberts reminisced about the year 1973, when he graduated from high school, and then moved on to his message: "Beware the robots." He said he worried about how big data and artificial intelligence could harm individuality and creativity.

Here are some highlights...
"I do not believe that the robots are going to take over the world. But I do think that there's a danger that artificial intelligence and big data may alter the way we perceive the world. My worry is not that machines will start thinking like us. My worry is we will start thinking like machines. Now don't get me wrong—artificial intelligence and big data have benefited mankind greatly and will continue to benefit mankind greatly."
"What is interesting can become very creepy very fast. Retailers can use facial recognition to tell them what you had bought recently and what your shopping experience was like. Now how do you respond to this? One response to artificial intelligence is to ensure that we develop and use real intelligence effectively. That means thinking—not just gathering more information."

The chief justice's advice to the graduating class: Set time aside each day to think. "Do not read more. Do not research more. Do not take notes. Put aside books, papers, computers, telephones. Sit, perhaps just for a half hour, and think about what you're learning. Acquiring more information is less important than thinking about the information you have. You and the knowledge you have accumulated need some quality time together to get to know each other better."

USA Today reported on Roberts's speech here, and watch video of the remarks here.
In Case You Missed It: Sotomayor Backs Clerk Plan; Munger Tolles Associates to Clerk for Breyer

>> Two Munger Tolles associates—Celia Choy and Dahlia Mignounaare leaving the firm's Washington office to clerk for Justice Stephen Breyer.

>> Did you catch Justice Neil Gorsuch's first solo dissent this term? His embrace of originalism garnered no support.

>> Justice Sonia Sotomayor joins colleagues in promoting the federal judiciary's new law clerk hiring plan.

>> Two former Clarence Thomas clerks—Carl Nichols of Wilmer Hale and Martha Pacold, a Treasury Department lawyer—were among the latest court picks from the Trump White House. Nichols was selected for the D.C. federal trial bench, and Pacold for the Northern District of Illinois. Trump picked former Anthony Kennedy clerk Eric Murphy, the Ohio state solicitor, for a Sixth Circuit slot.

>> The Supreme Court's appointment of Atlanta solo Amy Weil to argue an abandoned position broke a long streak of picking advocates from among the ranks of former clerks.

>> The Supreme Court's decision in Epic Systems should compel cities and states to step into the void to protect workers, writes Joanna Pearl, legal director of the Public Rights Project and a former CFPB lawyer.

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